Terms & Conditions
1. Conclusion of contract
All offers, deliveries and other services are made exclusively based on the following Terms and Conditions.
We shall not recognize any conflicting or differing Terms and Conditions of the Purchaser unless we have
expressly agreed to their application in writing. This shall also apply in cases in which we will carry out the
delivery unaware of contradictory or deviating Terms and Conditions of the Purchaser. All Offers are
non-binding, unless the offer is expressly limited to a certain period. All information concerning weight,
dimensions, performance and the like contained in catalogues, prospectuses, circulars, advertisements,
illustrations and price lists are not binding. We reserve the right to make changes to all our
publications. Our Terms and Conditions shall apply to all future transactions with the Purchaser,
without further necessity to separately refer to this fact.
2. Terms of payment, default of payment
Unless otherwise agreed, the purchase price is due immediately after delivery without a discount.
The Purchaser shall be in arrears, without requiring further reminders, at the latest 30 days after
the due date and reception of the invoice / payment order or reception of the service. If the customer
is in arrears, we are entitled to charge default interest of 5% above the respective base rate of the ECB.
Both contracting parties reserve the right to provide evidence as to a higher or lower loss. If,
following the conclusion of the contract, it becomes clear that our claim for payment is jeopardy
due to a lack of the customer's ability to perform, we are entitled to the rights pursuant to Para.
321 of the German Civil Code (BGB). In such an event we are then entitled to make all due
non-statute barred claims arising from the ongoing business relationship with the Purchaser.
In addition, our rights under Para. 321 BGB extends to all further deliveries and services
from the business relationship with the Purchaser. The Purchaser is entitled to
set-off only if his counterclaims have been legally established, undisputed or
acknowledged by us. This also applies to a right of retention, if his counterclaim
is not based on the same contractual relationship.
3. Delivery, force majeure, retention of title, delay
The transport risk is borne by the Purchaser, irrespective of the normal means of transport used for
dispatch. We have fulfilled our contractual obligation in connection with the delivery as soon as we
have sent out the items properly. The deliveries are not free-of-charge. If delivery is required by
the Purchaser, the Purchaser will be charged the resulting transport costs. This does not alter the
transfer of the transport risk to the Purchaser. Our delivery times are target dates. Even fixed
delivery times are not fixed dates according to Para. 361 BGB and para. 376 of the
German Commercial Code (HGB), unless they are expressly referred to as fixed dates. If we
cannot deliver the goods within an agreed delivery period or at an agreed delivery date, the Purchaser
shall set a extension of time of at least three weeks. The Purchaser can only set a shorter deadline
if circumstances make an extension of time of three weeks unreasonable for the Purchaser and if a
certain time frame has been obvious to us upon conclusion of the contract. The mere fact that the
parties have agreed on a binding delivery time is not sufficient. Only after the expiry of the extension
of time can the Purchaser derive any rights from the delay.
In the case of an express written description of a delivery period as binding, the delivery period begins
as soon as all details of the statements are clarified and both parties agree on all terms of the contract
and the performance of the contract. Binding delivery times are ensured by the committal of the products
purchased to the transport company.
Our obligation to deliver shall be suspended as long as the Purchaser is in arrears with an existing liability
Events of force majeure as well as other unforeseen events, in particular procurement, employment,
manufacturing and delivery disturbances with us or our suppliers, which we can neither anticipate
nor prevent with regard to the duration of their impact, will free us from our obligation to perform for
the duration of the disturbance as well as a reasonable start-up time and to the extent of their
effect - even during an already existing delay - insofar as the disturbance has not been caused
intentionally or grossly negligently by us.
Should it not be possible due to force majeure or other unforeseen events which we are not
responsible for to deliver the purchased items within a reasonable time, the Purchaser and us
shall have the right to withdraw from the contract in whole or in part. This shall also apply in the
event of the impossibility of the fulfillment of the contract which we are not responsible for. There are
no claims for compensation for such a withdrawal. If the party entitled to a withdraw wishes to exercise
such a right of withdrawal, the party must immediately inform the other party of their willingness to
exercise their right of withdrawal. Claims for damages by the Purchaser are hereby excluded.
The same shall apply if official and third party approvals necessary for the execution of deliveries are
not received in time. In the event of a subsequent alteration of the order or non-timely notification
by the Purchaser of the information required for the execution of the delivery, an appropriate extension
of the delivery period shall also occur.
In the event of delay in delivery or impossibility of the performance for which responsibility lies with us,
we shall be liable for damages. Such liability, in so far as we are not subject to intent or gross negligence,
shall be restricted to:
- In the event of a delay in delivery, the Purchaser may, in the event of damage,
receive compensation for a maximum of 0.5% of the price of the delayed delivery for every full week
of delay, but not in any case more than 30% of the net value of the delayed delivery or 10% of the final
delivery total net order value;
- any claim for damages due to non-compliance is limited to the replacement of such damages, which
we could have anticipated at the time when the contract was concluded as a possible consequence of the
infringement of the contract. In cases other than gross negligence our liability is limited to 50% of the
- Further claims arising from delay in delivery shall be determined exclusively in accordance with
para. 6.of this Terms and Conditions.
4. Reservation of title
We retain ownership of all delivered items until all payments under the contract have been made.
If the Purchaser is an enterprise, we retain title to the delivery item until all payments from the
business relationship with the Purchaser have been made. If the validity of this retention of title is
linked to special requirements or formal requirements in the jurisdiction of the place of delivery, the
Purchaser shall be obligated to notify us thereof and to ensure its fulfillment at his expense.
The Purchaser shall be entitled to dispose of the goods in which we have reserved ownership or to
which we are entitled to co-ownership (reserved goods) within the means of the ordinary course
of business, unless he is in default or has ceased payments. He may not pledge or surrogate the
reserved goods. A sale abroad is only permitted with our prior consent. If the Purchaser sells
reserved goods, he hereby assigns to us all rights, collateral and proprietary rights reserved
until all our claims have been fulfilled. We may demand that the Purchaser notify the assignment
to his customers and provide us with all the information and documents necessary for the collection.
The purchaser may process the products on which we have reserved our property within the scope of
ordinary business operations, unless he is in default or has ceased payments. In the case of processing,
it is hereby agreed that the new product resulting from the processing will be subject to a retention
of title which corresponds to the value of the products on which we have reserved our ownership
in relation to the value of the other processed items. The Purchaser shall store the new item created by
processing for us. The same shall apply if the Purchaser mixes, blends or combines the products
on which we have reserved our property.
The Purchaser is obliged to inform us at any time about the whereabouts and condition of the
delivered goods and to allow us an inspection. In case of default of payment of the Purchaser
or deterioration of his property, we are entitled to demand the delivery of the goods belonging
to us. This is deemed only a rescission of the contract if we expressly declare this, bare compulsory
statutory provisions forcing a rescission of contract. In the case of goods reimbursement, appropriate
discounts are made for wear and tear or the impairment or repair costs are invoiced.
5. Liability for Defects
Defects of quality
The Purchaser is obliged to check the delivered goods immediately after receipt and before processing.
Complaints due to incomplete or incorrect delivery or complaints due to obvious defects are to be
notified in writing within eight days after receipt of the goods. Other defects shall be communicated
to us in writing immediately after their discovery, at the latest within eight days. In the case of
delayed notification of defects, warranty rights under commercial law are expressly excluded.
The Purchaser’s warranty rights also require that he has properly complied with his inspection
and complaint obligations owed by law. In the case of transport damage, the Purchaser shall
have the damaged recorded immediately.
The deadline for the assertion of deficiency claims is one year from the delivery of the products.
In the case of non-compliance with operating and maintenance instructions, changes
to the products, parts are replaced or consumption materials which do not correspond to the
original specifications, claims for defects are excluded. All parts which are found to be defective
as a result of a circumstance occurring prior to the transfer of risk will be repaired or replaced
free of charge. The supplier must immediately notify the supplier in writing of any such defects.
Replaced parts become our property.
In order to undertake all subsequent improvements and substitute deliveries which are necessary,
the Purchaser shall allow for the necessary time. Otherwise, we are exempted from liability for the
resulting consequences. Only in urgent cases of endangering operational safety or to avoid
disproportionate damages, whereby we are to be informed immediately, the Purchaser is
entitled to fix defect by himself or by a third party and to demand compensation from
us for the necessary expenses. We shall bear the cost of the replacement including the
shipping as well as the reasonable costs of removal and installation, as far as the complaint proves
to be justified. Furthermore, if this is reasonably required in the individual case we shall bear
the costs of the necessary staff to perform the repair or refit. The Purchaser shall have the
right to withdraw from the contract within the scope of the statutory provisions if we,
taking the legal exceptions into account, have failed to answer for his call for repair
or refit within a reasonable period of time. If the defect proves to be insignificant,
thePurchaser is entitled only to a reduction in price. The right to reduce the agreed price is
No warranty is given in particular in the following cases: unsuitable or improper use,
faulty assembly or commissioning by the Purchaser or third parties, natural wear and tear,
faulty or negligent handling, improper maintenance, unsuitable operating equipment,
lack of construction work, unsuitable construction site, chemical, electrochemical or
electrical influences - provided that they are not our responsibility. If the Purchaser
or a third party improperly repairs or refits the product we shall not be liable for the resulting
consequences. The same shall apply to any changes to the product made without our prior consent.
Defects of rights
If the use of the products leads to the infringement of industrial property rights or copyrights
in Germany, we will, at our expense, procure the right to further use or modify the product in
a manner reasonable for the Purchaser so to end all infringement of rights.
If such a cause of action is not possible at economically reasonable conditions or within
a reasonable period, the Purchaser is entitled to withdraw from the contract. Under the
above conditions, we are entitled to withdraw from the contract too. In addition, we shall
release the Purchaser from undisputed or legally established claims of the protected proprietor.
In an event of rights infringement, the above mentioned rules obligations are
subject to Para. 6 of this Terms and Conditions.
They exist only when
- the Purchaser has immediately informed us of any alleged rights infringements,
- the Purchaser collaborates with us to an appropriate extent in our defense or to allow us to
carry out the implementation of the modification measures according to the above rule,
- When we e are entitled to all means necessary and available, including out-of-court measures,
- The defect of rights is not based on a Purchaser`s specification,
- The defect of rights is not caused by a Purchaser`s unlawful alteration of the
product or an unlawful implementation of the product.
6. General Limitation of Liability
We are liable for all our executives and other vicarious agents actions of the violation
of contractual and non-contractual obligations, in particular in cases of intent and
gross negligence. In all other cases our liability is limited to the contract-typical damage
foreseeable at the conclusion of the contract. These limitations do not apply in case of
culpable breach of essential contractual obligations in so far as the achievement of the
purpose of the contract is endangered, in cases of mandatory liability under the Product
Liability Act, in case of damage to life, body and health and also if and insofar
as we fraudulently concealed the matter or did not guaranteed it´s absence.
The rules on the burden of proof remain unaffected. Unless otherwise agreed upon, contractual
claims of the Purchaser against us on the occasion of or in connection with the delivery of the
goods shall become statute-barred one year after delivery of the goods. This period shall also
apply to goods which, according to their usual use, are used for a building and have caused
its defect. Our liability for deliberate and grossly negligent breaches of duty as well as the
limitation of statutory recourse claims remain unaffected. In the event of a repair or refit,
the limitation period shall not begin to run again.
7. Special arrangements for export
The place of delivery is determined according to delivery clauses agreed with the Purchaser.
All agreed delivery clauses are to be interpreted according to the current Incoterms,
currently Incoterms 2010. Unless a special delivery clause has been agreed, delivery
will always be made by FCA Herbrechtingen. Unless otherwise agreed, the risk shall
pass to the Purchaser at the time when the goods have been made available to him.
If the goods are transported to the Purchaser, the risk is transferred to the Purchaser
no later than the date on which the first carrier accepts the goods. If the
carriage of the goods is delayed as a result of circumstances beyond our control,
the risk shall pass to the Purchaser upon notification of readiness for dispatch.
At the request of the Purchaser, all deliveries shall be insured before the
transfer of risk on his account. In the event of a claim, we shall assign the
claims to the insurance to the Purchaser in contravention of performance
of the contractual obligations of the Purchaser.
All information in connection with the business relationship and the particular transactions
shall be processed in accordance with the legal provisions of the German
Bundesdatenschutzgesetz (Data Protection Law). The Purchaser is aware that we store data
from the contractual relationship pursuant to Para. 28 Bundesdatenschutzgesetz
(Data Protection Law) for the purpose of data processing and reserves the right to transfer
the data to third parties (e.g. insurances) insofar as necessary for the fulfillment of the contract.
All agreements and amendments to the contract are only valid if confirmed by us in writing.
All rights and claims of the Purchaser from this contract may not be assigned to a third party
without our consent. The place of performance for all deliveries and services is Herbrechtingen.
If the purchaser is a enterprise, a legal person of public law or a public special fund, the court
of jurisdiction is either Heidenheim or the court competent according to legal regulations.
This shall also apply if at the time of the conclusion of the contract the Purchaser has no general
court of jurisdiction within Germany or if his place of residence or business abroad is transferred
abroad or his habitual residence is not known at the time the appeal is brought.
The contractual relationship is governed by German law, with the exclusion of the
UN Convention on Contracts for the International Sale of Goods (CISG). Should any of the
above provisions be or become invalid or unenforceable, the remaining provisions shall
remain unaffected. The parties pledge to undertake to replace the ineffective or impracticable
provision with a provision which is asclose as possible to the economic purpose pursued
of the invalid or unenforceable provision. This also applies in the event that the
above regulations contain a gap.